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10 U. Pa. J. Const. L. 1011 (2008).

Abstract

The Framers’ approbation of a unitary executive rested in important part on the belief that the unitary executive’s actions were apt to be more “narrowly watched and readily suspected” by an informed public opinion than those of a plural executive. Yet the body of the Constitution provides no right to public information. What the Constitutional text omits, the last generation has embedded as a part of modern constitutional practice in the Freedom of Information Act.

Some critics have deplored FOIA as a “romantic” effort at “self help oversight”, superfluous in light of the checks and balances of divided government. Others voice complementary critiques: that FOIA is inefficient in producing important information, ineffective in checking abuses disclosed, and wasteful in squandering resources on rent-seekers instead of the task of effecting accountability.

This article assesses these criticisms in the context of case studies from the “Global War on Terror” (GWOT). I argue that each group of critics misconceives important normative and practical issues. FOIA must be understood as functioning within a broader ecology of transparency beyond the checks and balances of divided government. That ecology includes the permanent infrastructure of federal civil servants, internal watchdogs, reasonably open opportunities to publish and share information and a set of civil society actors that can pursue prolonged campaigns for disclosure. The successes of FOIA in calling the GWOT to account have thus been predicated upon and facilitated by institutions beyond the statute itself in ways that have gone unexamined by prior critics.

FOIA’s role has been both to authenticate prior disclosures, easing their way into public discourse, and to potentiate subsequent disclosures in ways that the critical literature has failed to appreciate. FOIA disclosures have functioned to leverage the checking functions of other institutions, and the cumulative impact of disclosures over time has begun to catalyze effective resistance to abuse. The breadth of the FOIA regime gives it robustness, and its situation in a resilient ecology of transparency provides a failsafe mechanism adapted to the task of bringing the popular conscience to bear against tyranny and barbarism.